Plan for voting machine probe dropped after lawsuit threat (nj.com)

I agree that the UCC isn't relevant to the specific case, because this definitely turns on the
licensing issue.

But I disagree that the UCC doesn't specify what rights are transferred with title. The UCC
says (S. 2-401) that the only interest in title that can be reserved is a security interest.
And a seller whose title is encumbered can still transfer full title to a bona fide purchaser
for value.

Granted, S. 2-403, which recites the BFPV rule, leaves some doubt in my mind. Specifically,
the first sentence, "A purchaser of goods acquires all title which his transferor had or had
power to transfer except that a purchaser of a limited interest acquires rights only to the
extent of the interest purchased." But, S. 2-401(1) seems, on its face, unequivocal: "Any
retention or reservation by the seller of the title (property) in goods shipped or delivered
to the buyer is limited in effect to a reservation of a security interest." So I assume
(though I haven't looked at caselaw, and my treatises at hand don't address this issue) the
2-403 wording is merely accommodating the allowance for security interest.

I also disagree that we're better off with "free commerce" as opposed to "fixed rights";
specifically, I believe it's a false dichotomy. By assuring that specific sets of rights are
not divisible, you promote free commerce in the future. If Sequoia and every other vendor can
restrict usage like this, I fail to see how the free market will address the immediately
resulting inequalities. Now, my personal understanding isn't requisite to keep the world
turning. Nonetheless, my contention is that there are certain structures necessary, or at
least preferable, to ensure the efficient operation of the market. As I stated previously, you
want to fix the quanta of rights at the point where transaction costs (both local and
non-local to the transaction) are minimized relative to the value creation. (I'm not saying
these decisions should be made on high; part of my contention is that a thousand years of
Common Law, and earlier Roman history, have something to say about what is efficacious or
not.)

If you allow indiscriminate fracture of property interests, you're increasing future
transaction costs to reassemble those interests. That means future potential preferable
exchanges will be too expensive. (For instance, you buy closed source software; 15 years later
you'd really like the source code, but its long destroyed. The long-term potential of the
market has been irreversibly diminished in a way that would have only been prevented by (a) an
Oracle or (b) systemic principles.) Again, this is a fundamental precept in Property Law, and
it's not the lesser because of all the other crufty and inequitable rules which also survived
through the Common Law.

Fixed rights are like currency. A totally "free market" would have a perfectly and infinitely
divisible unit of currency. That's not possible. Similarly, it doesn't make sense to argue
that "rights" should be perfectly divisible. Indeed, we don't even desire the minimally
possible unit of currency--e.g. the penny (that's not to say fractions of a minimum unit don't
have utility, usually in highly specialized and automated markets where specific transaction
costs are different). Similarly, the market will function just as efficiently--nay, likely
more so--by the use of a larger unit of exchange of rights. And in the interests of equity, it
makes sense, as a social and political matter, to put a minimum bound on the exchange of
rights to bolster and protect the civil rights of individuals, secure in the fact that
there're no countervailing economic costs.

So, it's a false dichotomy to propose that traditional Property Law necessarily hinders the
market. We can argue about where the bounds should be, and how they should be changed over
time. But bounds are useful. If someone believes in free markets (I do), it's not enough to
wave hands and chant "free market". I can get into my opinions on the inherent limitations of
Contract Law devices like Unconscionability, but I've obviously yammered on enough.